Nebraska Law Review Volume 83 | Issue 2 Article 4 2004 A New Corps of Discovery for Missouri River Management Sandra B. Zellmer University of Nebraska Lincoln, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Sandra B. Zellmer, A New Corps of Discovery for Missouri River Management, 83 Neb. L. Rev. (2004) Available at: https://digitalcommons.unl.edu/nlr/vol83/iss2/4 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Sandra B. Zellmer* A New Corps of Discovery for Missouri River Management TABLE OF CONTENTS I. Introduction .......................................... 306 II. The Jeffersonian Corps of Discovery ................... 310 III. Of Famine and Floods: The Flood Control Act of 1944 ............................................... 312 A. The Impetus for the Flood Control Act ............. 312 B. The Implementation of the Flood Control Act ...... 315 IV. The Environmental Era: All Creatures Great and Sm all ............................................ 319 V. The Clash of the Titans: Engineers, Barges, Birds, and Fish .............................................. 324 A. Track One: The States' Flood Control Act Litigation ......................................... 324 B. Track Two: The Environmental Groups' ESA Litigation ......................................... 326 C. The Minnesota Opinion and 2004 Master M anual ........................................... 329 VI. A New Corps of Discovery: An Organic Act for a Sustainable Management Paradigm ................... 334 A. The Law of the Missouri River ..................... 334 B. A Federal Missouri River Organic Act ............. 337 C. The Basic Organic Act Principles .................. 346 D. Other Options, from Most to Least Drastic ......... 357 V II. Conclusion ............................................ 360 © Copyright held by the NEBRAsKA LAW REVIEW. Associate Professor of Law, University of Nebraska College of Law. B.S., Morn- ingside College; J.D., University of South Dakota College of Law; LL.M., The George Washington University National Law Center. I am grateful to the Uni- versity of Nebraska for its research support and for sponsoring the First Annual Water Law, Policy, and Science Conference: Finding Solutions to Multi-jurisdic- tional Water Conflicts (Mar. 4-5, 2004), which resulted in this Symposium issue. I also thank John Davidson, Janice Schneider, and Chad Smith for sharing their thoughts on Missouri River management, and Shannon Brennan for her out- standing research efforts. NEBRASKA LAW REVIEW [Vol. 83:305 I. INTRODUCTION I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new dis- coveries are made, new truths discovered and manners and opinions change, ...institutions must advance also to keep pace with the times. Thomas Jeffersonl Two hundred years ago, President Thomas Jefferson sent Mer- iwether Lewis and William Clark on an expedition along the Missouri River in hopes of discovering an all-water route to the Northwest. Al- though this dream was not fulfilled, the Corps of Discovery brought back a wealth of scientific information.2 Its zoological and botanical discoveries, in particular, were beyond any value.3 Today, at the expe- dition's bicentennial, the Missouri River continues to defy the govern- ment's aspirations for substantial commercial navigation. It remains an ecological treasure trove of endemic fish and wildlife species and plant communities, but these riches have been vastly depleted. Pro- tecting and restoring the river's ecological values, while sustaining re- alistic economic expectations, will prove to be a task equal to the one undertaken by Lewis and Clark. The indubitable goal of river management in Jefferson's day and for over a hundred and fifty years afterwards was navigation for pur- poses of promoting commerce and westward expansion.4 That goal has begun to evolve for river systems across the nation. The emergent focus is ecosystem health, forced in part by federal requirements for water quality and endangered species. Ecosystem health in turn re- quires ecological sustainability-maintaining both the physical struc- ture and organization of the river and its inhabitants as well as their function and vitality over time.5 For river ecosystems, ecological sus- tainability invariably entails some semblance of natural flow re- gimes.6 National environmental policy has begun to recognize the 1. NAT'L RESEARCH COUNCIL, NAT'L ACADEMICS, THE MISSOURI RIVER ECOSYSTEM: EXPLORING THE PROSPECTS FOR RECOVERY 110 [hereinafter NRC, MISSOURI RIVER REPORT] (citing Letter from Thomas Jefferson, to George Washington (Jan. 4, 1786)). 2. PAUL RUSSELL CUTRIGHT, LEWIS AND CLARK: PIONEERING NATURALISTS 423, 447 (1969). 3. Id. 4. John E. Thorson, Voyage of Rediscovery: Lessons from Lewis & Clark for Missouri River, 6 GREAT PLAINS NAT. RESOURCES J. 121, 121-22 (2002); see SAMUEL P. HAYS, CONSERVATION AND THE GOSPEL OF EFFICIENCY: THE PROGRESSIVE CONSER- VATION MOVEMENT (1959) (describing New Deal goals for river management). 5. Robert Costanza & Michael Mageau, What is a Healthy Ecosystem?, 33 AQUATIC ECOLOGY 105, 106 (1999). 6. See N. LeRoy Poffet al., The Natural Flow Regime: A Paradigmfor River Conser- vation and Restoration, 47 BIOSCIENCE 769, 769 (1997) (concluding that stream- flow is the "master variable" for rivers, influencing and limiting the abundance and distribution of species in the river system); see also SANDRA POSTEL & BRIAN 20041 MISSOURI RIVER MANAGEMENT between ecosystem health and human well-being, but close linkages 7 the law does not fully reflect those linkages. On the Missouri, tensions have run high ever since the Corps of 8 Discovery explored the river's furthest reaches in the early 1800s. The conflict between navigation and ecological protection in the Mis- souri River basin has given rise to a veritable "clash of the titans" dur- ing these bicentennial years. Upper basin states, are pitted against lower basin states, and both have had their run-ins with federal agen- cies. The U.S. Army Corps of Engineers stands at the vortex of the controversy, with the states, as well as environmental and commercial associations, demanding contradictory and even mutually exclusive responses in, river operations. Tensions over river management are by no means isolated to the Missouri River basin. Conflicts between water users and imperiled species have been raging across the country for the past quarter-cen- tury. The flavor of the conflict is somewhat different in the Missouri River basin than in many regions of the American West, because so few rely on Missouri River water for consumptive uses. Irrigation with water from the mainstem river is minimal, and there are few users with legally protected rights to the water who have an incentive to jump into the fray. As Professor Dan Tarlock points out, "the Mis- souri River is a paradox: the amount of water available ... is inverse to the number of potential users."9 Yet "conflict without scarcity" in terms of water quantity is conflict nonetheless.1 0 Other types of scarcity generate controversy on the Missouri River: scarcity of keystone species; diminishment of the nat- ural flow regime; and a paucity of willingness to adapt as necessary to ensure the long-term viability of human and ecological communities. These conflicts prompt stakeholders to draw battle lines in the sand, RICHTER, RIVERS FOR LIFE: MANAGING WATER FOR PEOPLE AND NATURE 51 (2003) (noting broad-based scientific consensus that flow regime is of"paramount impor- tance" to a river ecosystem because of its influence over water quality, food sup- ply, species interactions, and other ecological factors). 7. Costanza & Mageau, supra note 5, at 105 (citing ENVIRONMENTAL PROTECTION AGENCY, SCIENCE ADVISORY BOARD 1990); see POSTEL & RICHTER, supra note 6, at 93 ("[TIhe United States has no overarching vision or goal to secure the flows that rivers need to support the diversity of freshwater life and to sustain ecological functions."). 8. See generally JOHN E. THORSON, RIVER OF PROMISE, RIVER OF PERIL: THE POLITICS OF MANAGING THE MISSOURI RIVER (1994) (providing a detailed history of Mis- souri River development, challenges, and controversies); John P. Guhin, The Law of the Missouri, 30 S.D. L. REV. 350 (1985) (describing the legal framework for Missouri River management up to the 1980s). 9. A. Dan Tarlock, The Missouri River: The Paradoxof Conflict Without Scarcity, 2 GREAT PLAINS NAT. RESOURCES J. 1, 1 (1997). 10. Id. NEBRASKA LAW REVIEW [Vol. 83:305 making them less amenable to adaptive, creative solutions, just as surely as conflict over water scarcity does. The most recent Missouri River litigation conflagration has drawn in five states, two federal agencies, several Native American tribes, and numerous private litigants over the largest dam and reservoir system on the longest river system in the nation.1 It implicates three federally protected species, as well as barge operators, shippers, and recreational and commercial interests related to tourism and sport fisheries.12 Two potentially contradicting federal laws provide the subtext: the Endangered Species Act ("ESA") and the